The ugliest election

From the overly decorous Gore team to the bought-and-paid-for Supreme Court, HBO's enraging docudrama shows the Florida recount like it was.

By Gary Kamiya
Published May 23, 2008 11:15AM (EDT)

"Recount," director Jay Roach and screenwriter Danny Strong's first-rate docudrama about the disputed 2000 presidential election, is almost too painful to watch. Close to eight years have passed since a divided Supreme Court ended the epic 36-day battle over the votes by halting the recount in Florida, thus handing the election to George W. Bush. The bitterness over that judicial outrage may have subsided, but it never died, and HBO's "Recount" brings it all back. In fact, it's almost more unbearable to revisit this black chapter in American history than it was to experience it at the time. Beyond the manifest injustice of the ruling, after eight years of George W. Bush, we now know exactly what that ruling resulted in. It is impossible to watch "Recount" without experiencing a constant stream of agonized what-ifs.

Faced with this explosive subject, HBO could have played it safe and approved a mealy-mouthed "both sides made mistakes" film, the sort TV networks usually churn out on the rare occasions when they dare to tackle controversial current events. To its credit, it set the bar higher. "Recount" reveals what actually happened in Florida. And that's an audacious feat.

For those who may have repressed all memory of what happened in Florida, way back at the beginning of time before 9/11, Iraq and the Bush presidency, here's a quick primer. The election was a cliffhanger, the closest in modern American history. Gore won the popular vote by 540,520 votes, but the Electoral College tally -- the only one that matters -- came down to Florida. The networks called Florida for Gore. But then Bush took the lead, and first Fox, then the networks called it for Bush. Following the revised calls, Gore informally conceded to Bush and was about to formally concede when an aide intercepted him at the last minute. The aide told Gore that the numbers were closer than the networks were reporting -- so close that an automatic recount would be triggered. Gore withdrew his concession, and the 36-day battle began.

The Gore team, headed by William Daley (son of the Chicago mayor, who was long suspected of throwing the 1960 election for Kennedy), hired former Secretary of State Warren Christopher to head its political and legal campaign. Bush's lead after the automatic machine recount had dwindled to just 327 votes. The Gore team decided not to ask for a statewide manual recount, but to request one only in four heavily Democratic counties: Palm Beach, Volusia, Broward and Miami-Dade. It was to prove a fateful -- perhaps fatal -- decision.

Katherine Harris, the Florida secretary of state who was also a co-chair of Bush's campaign in the state, promptly ruled that the deadline to certify the vote was the next day, and that manual recounts would not be permitted. When three of the counties requested that their manual tallies be included, she ruled against them. But then the Florida Supreme Court, which was to become Gore's crucial ally in the GOP-dominated state, stepped in and ruled that manual recounts could proceed.

Bush's lawyers, who had been prepared for a legal defeat at the hands of the Florida court, appealed the ruling to the U.S. Supreme Court. Meanwhile, the indefatigable Harris denied Palm Beach County's request for more time to finish its recount (had she granted it, Gore would have cut Bush's 337-vote lead by either 215 or 176 votes) and certified Bush the winner in Florida.

Gore formally contested the election, but a conservative judge ruled against him. Gore appealed the decision to the Florida Supreme Court. In a dramatic turnabout, the Democrat-dominated court not only ruled in his favor, but ordered that all ballots in the state that had recorded no vote for president (so-called undervotes) be manually recounted. Bush appealed to the U.S. Supreme Court, which by a 5-4 vote ordered that the manual recount stop immediately. Bush and Gore lawyers filed briefs with the high court, which heard their arguments the next day. Again by a 5-4 vote, with the five Republican justices concurring, the Supreme Court overturned the Florida court's decision, rejecting further manual recounts.

In telling this story, screenwriter Danny Strong draws heavily on four journalistic accounts: "Too Close to Call" by Jeffrey Toobin, "Down and Dirty" by Jake Tapper (now an ABC news reporter who covered the story for Salon), "The Accidental President" by David A. Kaplan, and "Deadlock" by David Von Drehle and Ellen Nakashima. Toobin, Tapper, Kaplan and Von Drehle, along with Time's Mark Halperin, were paid consultants on the film. Strong also interviewed 40 principals, including Bush's chief strategist James Baker and chief counsel Ben Ginsberg, Gore's initial representative Warren Christopher, and Ron Klain, the Gore strategist who, played by Kevin Spacey, is the protagonist of the film.

Strong sent the script to the consultants, as well as to Baker, Klain and Ginsberg, all of whom signed off on it. In fact, Strong told Politico that "Baker really liked the script and couldn't have been more supportive."

That Baker -- the Bush family consigliere whose icy, authoritarian performances during the battle epitomized the GOP's win-at-all-costs approach -- liked the script, is both unsurprising and disconcerting. It's unsurprising because Baker himself comes off pretty well in the film. Played with uncanny verisimilitude by Tom Wilkinson, Baker is a coldblooded, highly effective strategist who rolls over his hopelessly wimpy, but principled, Democratic counterpart, Warren Christopher (played with ossified gravitas by John Hurt). Perhaps as a self-protective nod toward balance, the script goes out of its way to humanize Baker. In one of the few moments in which the film explores a character in any depth, Baker explains to Ginsberg that he became a Republican in middle age because George H.W. Bush, in a compassionate gesture, offered him a job after Baker's wife died. And in an invented scene, Baker and Klain meet on the tarmac when it's all over. There's a Homeric, noble-adversaries quality to the encounter: Baker treats Klain with respect, and acknowledges that each of them believes his candidate was the better man. The Baker portrayed in "Recount" is no rigid ideologue but, rather, a consummate professional who is also a decent human being.

But it's also disconcerting that Baker liked the script, because "Recount" shows just what an outrageous, profoundly anti-democratic coup he helped pull off.

"Recount" isn't a polemic. It's driven by moment-to-moment plot twists, told from Klain's point of view, and it avoids explicit moralizing or external editorializing. It tries to be fair to the GOP, including one line in which a Republican operative lashes out at all the previous elections the Democrats had stolen. (There's some validity to his charge: As Toobin notes, the 1984 "Indiana 8" election, widely regarded as an outright theft by the Democrats, helped radicalize a generation of Republicans.) But in its understated way, "Recount" is a devastating indictment of the forces that successfully stopped the counting. It makes it painfully and inescapably clear that the Bush team, the GOP, and ultimately the five Republican justices on the Supreme Court, did nothing less than successfully subvert American democracy in order to get their man in office. Baker may look back on his Florida performance with justifiable professional pride, but a film that depicts you as a key player in one of the most disgraceful episodes in American political history hardly seems like something to break out the popcorn for.

Strong has pulled off a tricky feat: "Recount" is a political cliffhanger that also concisely elucidates the battle's central controversies, such as the Gore team's fateful decision to call for manual recounts only in four heavily Democratic counties. The HBO film depicts that decision as driven by pragmatism, a portrayal that accords with the historical record. Gore's people feared that all 67 counties wouldn't be able to complete the recounts by the deadline, which fell in just six days. In his excellent book "Too Close to Call," which the film closely tracks, Jeffrey Toobin also notes that the Democrats feared that if some counties refused, Gore's political momentum would be hurt. Perhaps more important, he writes that the Gore team was afraid that asking for all 67 counties would be overreaching. The central thesis of his book is that Gore's desire to please the Establishment, his fear of appearing too aggressive, set the parameters that doomed his efforts to failure against the hyper-aggressive Republican campaign. He quotes the ultimate Establishment pundit, veteran New York Times correspondent R.W. "Johnny" Apple, who wrote at the beginning of the crisis, "Now we learn ... who the grownups are around here." The message: Gore must not go too far.

Picking up on this theme, the film repeatedly shows the Gore camp bowing to an internalized need to behave decorously. "Johnny Apple says we have a week to resolve this," we see Christopher saying, as if referring to a pronouncement from on high. Whether because it was eager to behave like grown-ups, or for more practical reasons, the Gore team decided not to ask for recounts throughout the state. The decision was ad hoc and cautious, as many of Gore's decisions were.

Yet Bush's team immediately used this decision to accuse Gore of trying to brazenly steal the election -- a line that ultimately resonated with the Supreme Court. When one Bush operative in the film suggests that Bush should ask for recounts in Republican counties, Baker says, "Hell, no. We already won. And they gave up their moral high ground when they only requested recounts in the four most liberal counties in the state." He immediately goes on TV and lambastes Gore for cherry-picking -- an obvious counterattack that Gore's team was typically unprepared for.

By simply insisting that Bush had already won, Baker and his colleagues seized the high ground, although they had no legal or ethical right to do so. Gore's cautious tactics put him permanently on the defensive and made it easy for the GOP to paint him as "Sore Loserman," when in reality the election was still in play.

The avatar of Establishment wimpiness in "Recount" is Christopher, the former secretary of state who was brought in to helm the battle over the recount. Again and again, the film shows Christopher declaiming that "the world is watching," delivering lofty speeches about America's unique status and insisting Gore's team must adhere to Marquis of Queensbury rules, while Baker is revving up the full power of the well-oiled Republican attack machine. "I want our protesters down there in Palm Beach, Tallahassee and Miami," Baker tells his team. "Listen, people, this is a street fight for the presidency of the U.S. It ain't gonna get more political than this." Cut to Christopher, his brow furrowed loftily: "We want to proceed as if this is a proper legal process, not a political street fight ... chaos will not help our cause." A few moments later, Christopher says, "No lawsuits." Cut to Baker: "I want to file a lawsuit in federal court as soon as possible."

On one side, a bunch of dithering, principled losers who politely ask permission to enter the ring. On the other, a disciplined, ruthless gang of brawlers burning with self-righteousness, a near-holy sense of entitlement and controlled rage. We can't say we should be surprised by the way George W. Bush has run the country -- the blueprint was laid out even before he took office.

Christopher has denounced the way he is portrayed in the script. "I was stunned by the excerpt," he told the New York Times. "Much of what the author has written about me is pure fiction. It contained events that never occurred, words I never spoke and decisions attributed to me that I never made." Klain, who says the film gets the larger issues right, also criticized the portrayal of Christopher, saying, "He was as intense and vigorous an advocate for Vice President Gore as anyone there." Even Baker said that Christopher wasn't as wimpy as he appears in the film.

There's no reason to doubt Christopher's claim that the film played fast and loose with what he actually said and did. But it's less clear that Strong got the big picture -- about Christopher in particular and the Gore team in general -- wrong. In "Too Close to Call," which is based on more than 100 interviews as well as voluminous secondary sources, Toobin presents Gore himself, his campaign chairman, William Daley, and Christopher as "so worried about appearing too aggressive that they were always hedging, compromising, and, in effect, undercutting their own work." According to Toobin, just four days after the election, Christopher and Daley were "making the case for surrender" in a meeting with Gore and Lieberman. "I'm 75 years old," Christopher tells Gore. "You're only 52. You can run again. But you don't want to be known as a sore loser. You don't want to fight for too long. You've got to have your eye on history and the future."

Assuming Toobin's and other contemporaneous journalistic portrayals of Gore, Daley and Christopher are reasonably accurate, the only legitimate complaint the Gore team could make about "Recount" is that Christopher was unfairly made the poster child for a wimpiness that started at the top and infected the entire team.

Actually, the fact that Gore's people are complaining, while Baker has given the film two thumbs up, is somewhat bizarre. The Gore team's effort may have been dithering, but it comes across as morally justified. This cannot be said of its counterpart.

Like all docudramas, "Recount" must walk a fine line between being entertaining and telling the truth. It largely succeeds: It moves at a breakneck pace, yet also manages to relate most of the crucial legal and political developments in the battle, from the crucial role played by the Elían Gonzalez case (which mobilized Cuban-Americans against Gore, to great effect), to the notorious "Brooks Brothers riot," when GOP congressional aides flown in as shock troops succeeded in scaring the Miami-Dade County board members into stopping their recount, to Sen. Joe Lieberman's collapse on national TV over disputed military ballots. (In a fit of patriotic belly-crawling that presaged his later incarnation as a war-supporting überhawk and party apostate, Lieberman simply announced that all military ballots should be given a free pass.)

The film's standout performance is by Laura Dern, whose almost-cartoonish Katherine Harris somehow manages to capture the absurd malevolence of Florida's secretary of state, who somehow manages to be clueless while adroitly carrying water for her GOP superiors. The (documented) scene in which senior Republican advisor Mac Stipanovich orders Harris to "bring this election in for a landing with George W. Bush in the cockpit" would be funny if it wasn't so scary: It's disconcerting to turn on your TV and watch irrefutable evidence that an American state is essentially a banana republic.

But the film's dramatic heart is Kevin Spacey's Klain, a ground-down but still idealistic hero in the Philip Marlowe tradition, a world-weary Everyman. The film puts its thumb on the scales a bit when it depicts Klain screaming, "I'd like to know who won this fucking election!" an outburst that almost seems too noble to be true. But Klain is more convincing, and moving, when he tells Gore in a final phone conversation, "I'm sorry, sir, I just couldn't get them counted." In their simplicity and pathos, his words highlight the moral bankruptcy of the other side's attempt to simply declare Bush the victor.

The one place where "Recount" pulls its punches is with the now-infamous Supreme Court decision, which ordered the recount mandated by the Florida Supreme Court stopped. The truth is that the Republican maneuvering to stop the recounts, while reprehensible, was business as usual: This is what political operatives do. Elections are a game, and you try to win the game any way you can. The real outrage was the Supreme Court decision, one that radically departed from the conservative majority's judicial philosophy and disgraced its legacy. Justice is not a game, and judicial decisions that treat it as such, that are clearly results-driven, erode the legitimacy of American law and our civic culture. But because of its thriller formula, and because any deeper criticism of the court's decision would have required a dramatically implausible excursus, "Recount" does not nail the five Republican justices the way they deserve.

Not that it gives the high court a complete pass. It shows Baker, planning three moves ahead, acknowledging that the Supremes would probably not take the case because to do so would violate their belief in states' rights, but making preparations for the case anyway. After the court rules, it dramatizes Justice Stevens' eloquent dissent and then shows Justice Scalia's response, one likely to join Dred Scott in the annals of court infamy. Scalia stated that "the counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner and to the country, by casting a cloud upon what he claims to be the legitimacy of his election." As Jack Balkin, a professor at the Yale Law School, pointed out in the Yale Law Journal, "This view makes perfect sense if the Court had already made up its mind that Bush would win the case and become president."

And "Recount" alludes to the ruling's notorious "this train and this train only" coda, in which the majority blandly states that their ruling will apply only to the present case. As University of Chicago law professor David Strauss argued in "The Vote: Bush, Gore and the Supreme Court," "The Court's attempt to limit its holding, with barely a fig leaf of principle, gives the game away. The majority was not concerned with principle. It smelled a rat in this case. It thought the Florida Supreme Court was up to no good. It could not explain what the Florida Supreme Court was up to in terms that engaged general principles that it was willing to embrace, but it was determined to intervene and stop that court. If the actions of the United States Supreme Court are to be defended, they must be defended in those terms."

Which is a polite way of saying that if you're going to defend the court's decision, you must start from the premise that that decision was corrupt, unprincipled, illegally motivated by the desire to achieve a given outcome, and unsupported by law.

But "Recount" spends only a few minutes dealing with the court's ruling, and doesn't figure out a dramatic way to place it under the microscope. Presumably out of deference to the court's august reputation (or what used to be its august reputation), it does not impugn the integrity of the five justices who, in direct contradiction to all their previous jurisprudence, voted to stop the recount, then ruled that the state had run out of time. For example, it does not show the notorious, widely reported scene at a party at which Justice O'Connor ranted angrily against "those Gore people," or the earlier Election Night party when she reacted to televised reports that Gore was winning by exclaiming, "This is terrible," and hurrying away from the TV. Nor does it go deeply into the bizarre inconsistency of a deeply conservative, federalist, non-interventionist court suddenly overruling a state on a state matter, and doing so on the even more bizarre basis of the Equal Protection clause of the 14th Amendment -- a clause used almost exclusively to protect the rights of minorities, and one that the brains of the court's right-wing cabal, Justice Scalia, had explicitly argued should not be used in cases like Bush v. Gore.

But if it doesn't hit the five bought-and-paid-for Supremes with the legal and ethical sledgehammer they deserve, "Recount" does make the essential point: Even though Florida's standards for counting votes were hopelessly confused and contradictory, there was one overriding principle that was clear and enshrined in state law: the intent of the voter. And it also makes clear that hand counting, contrary to the disingenuous and undemocratic arguments made by the GOP that it was a recipe for "chaos and mischief," was a better way of discerning that intent than machine counting. If the conservative majority on the U.S. Supreme Court was really concerned about fairness, it could have simply asked the Florida Supreme Court to devise a universal standard, appoint a judge to enforce it, and then extend the state's meaningless "safe harbor" deadline to make it possible to complete the recount. It did not do so because it was not interested in counting the votes. It wanted George W. Bush to win.

In the end, that ugly truth is what you take away from "Recount." The final shot in the film is of a warehouse filled with ballots. It's impossible not to realize that many of those ballots, thanks to a ruling issued by the highest court in the United States, were never counted. It's an image that no American should ever forget.

Gary Kamiya

Gary Kamiya is a Salon contributing writer.

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Al Gore Democratic Party George W. Bush Hbo Republican Party Supreme Court